New England Biz Law Update
Employers should be reminded by counsel, from time to time,
that the best way to avoid an OSHA violation is to adequately prepare for OSHA
inspections before they occur. This will include a review of all training
policies, training records and a complete review of all record keeping of
injuries at the workplace.
Employers should also identify in advance a qualified
representative to accompany an OSHA inspector, especially since OSHA inspectors
can arrive unannounced. In the simplest of terms, the best way to be ready for
an OSHA inspection is to simply “Be Prepared.”
The Occupational Safety and Health Act of 1970 (29 U.S.C.
§651(b)) governs workplace safety, and the agency that oversees the enforcement
of the Act is the Occupational Safety & Health Administration, an agency of
the U.S. Department of Labor.
The Act defines “employer” as “a person engaged in a
business affecting commerce who has employees, but does not include the United
States or the state or political subdivisions of a state.”
Most employers fall under the “general duty” standard, which
is designed to provide all employees with a safe and healthful workplace (29
U.S.C. §654(a)(1)).
The “employees” covered under the Act include supervisors,
partners, corporate officers, former employees, applicants for employment, and
all other employees of the employer (29 C.F.R. §1977.6(b)).
Each employer is required under the Act to post a “notice
poster” that is furnished by OSHA informing employees of the protections and
obligations of their employers under the Act (29 C.F.R. §1903.2).
Basic Record Keeping Requirements
Employers must be diligent in their record keeping of
work-related injuries and illnesses and they must accurately and consistently
provide this information to OSHA on the OSHA 300 Log of Work-Related Injuries
and Illnesses.
There is also an OSHA 301 Injury and Illness Incident
Report, which must reflect the record of any reportable incident within seven
calendar days of receiving the information that the reportable injury or
illness has occurred (29 C.F.R. §1904.29(b)(3)). The OSHA 300A Summary of
Work-Related Injuries and Illnesses report must be completed and posted every
Feb. 1 for the preceding year. The OSHA 300A Summary Log must be reviewed for
completeness and accuracy, have a company executive certify the summary and
then it must be posted in a conspicuous place where notices are customarily
kept, and remain in that location until April 30 of that year (29 C.F.R.
§1904.32).
The employer must keep the OSHA 300 log and the annual
summary, as well as the OSHA 301 Incident Report form for five years following
the end of the calendar year that the records cover.
Virtually every employer is required to maintain these
records, except for employers of 10 or fewer employees and business
establishments that have been classified in specific “low hazard industries”
such as retail, service, finance, insurance, or real estate industries.
Employers should maintain these records in an easily
accessible location in the event that they are required to be produced by OSHA,
or an equivalent state agency representative, because when such a request is
made, copies of the records must be provided within four (4) business hours of
the request.
Even though the Act requires each employee to comply with
the safety and health standards under the Act, the Act does not impose any
sanctions on employees for failing to observe the standards.
It is the employer’s responsibility to discipline employees
who refuse to comply with appropriate safety rules. Therefore, employers must
take all lawful available steps to obtain employee compliance with the
standards, and thereby provide a safe and healthy working environment.
OSHA Inspections
The Act specifically authorizes OSHA to make unannounced
inspections during regular working hours and at other reasonable times of an
employer’s premises, factory, plant, construction site or other area or
workplace where there is work to be performed by an employee. The inspector may
also review records that are required to be kept by the Act, and those that are
directly related to the purpose of the inspection (29 U.S.C. §657(a)(c)(1); 29
C.F.R. §1903.3(a)).
An employer may initially refuse to allow an OSHA inspector
onto the premises; however, the OSHA inspector is permitted to seek a search
warrant from the U.S. District Court to obtain a search warrant, which is
provided at a lower threshold than that usually applied for most search
warrants (29 C.F.R. §1903.4). See Marshall v. Barlow’s, Inc., 436
U.S. 307 (1978). No warrant is necessary, however, when the violations of the
employer’s site are in plain view.
Inspections usually occur as a result of a complaint that
has been filed by an employee with OSHA, or it may be the result of a random
selection process by OSHA. If the inspection is the result of a complaint that
has been filed by an employee, employers may not discharge or otherwise
discriminate against the employee who filed the complaint (29 C.F.R. §1903.11).
Generally, the inspection will begin with the investigator
presenting his or her credentials, explaining the nature and the purpose of the
inspection and indicating generally the scope of the inspection and the records
that they wish to review (29 C.F.R. §1903.7(a)).
Usually the opening conferences are very brief and do not
exceed one hour. It is at this time, however, that if an employer is concerned
that certain trade secrets or other confidential information, such as formulas,
patents, devices, or compilations of information used in that business may
become part of the investigation process, then the employer has a right to seek
in writing from the OSHA inspector an agreement to maintain the confidentiality
of such “confidential-trade secret” information.
If an OSHA inspector, who is a federal employee, or other
federal officers disclose such trade secrets during the inspection, or
subsequently, they can be fined up to $1,000 or imprisoned for up to one year
or both and be removed from federal employment (18 U.S.C. §1905; 29 C.F.R.
§1903.9(b)).
During the inspection, the OSHA inspector is authorized to
take environmental samples, take photographs, question privately any employee
of the establishment, and review all OSHA-related records. The OSHA inspector
must comply with the employer’s safety and health rules and practices at the
establishment being inspected, and wear all appropriate protective clothing and
equipment.
The employer may have a representative of the company follow
the OSHA inspector throughout the inspection process. Employees may also
designate a representative who will be given an opportunity to accompany the
OSHA inspector during the physical inspection of the workplace as well.
At the conclusion of the inspection, the OSHA inspector will
hold a closing conference, and discuss with the employer any apparent safety or
health violations disclosed during the inspection process. During the
conference, the employer is allowed an opportunity to bring to the attention of
the OSHA inspector any pertinent information regarding the conditions at the
workplace and to discuss the abatement of any recognized violations (29 C.F.R.
§1903.7(e))
If a violation has been found, the OSHA inspector may
request that a citation issue from the Area Director. Minimal violations have
no direct or immediate relationship to safety and health. However, they
identify minor issues that must be rectified by the employer.
If a citation for a specific violation of a standard is issued,
it must describe with particularity the nature of the alleged violation, a
reference to the specific provision of the Act that has been violated, or the
specific standard, rule or regulation that has been violated, and set a
reasonable time to rectify and abate any alleged violation by the employer.
If an employer receives a citation by OSHA, it is required
to immediately post the citation at or near each place of the alleged violation
referred to in the citation (29 U.S.C. §658(b)). The citation must remain
posted in the violation area until the violation has been abated, or for three
working days after the citation is received, whichever occurs last (29 C.F.R.
§1903.16(b)).
Even if an employer seeks an order vacating the citation by
contesting the citation, the employer must still post the citation, regardless
of the challenge issued by the employer. The employer does have the right,
however, to post in the same location where the citation is posted a notice
explaining the reasons for the contest, the specific steps that have been taken
to abate the violation and other reasonable information regarding the
violation.
If the employer wishes to contest the issuance of a
citation, the employer must do so within 15 working days after receipt of the
notice of the proposed citation and penalty Along with contesting the essence
of the citation, an employer may also file a petition for modification of the
abatement date when it has made a good faith attempt to abate the violation
but, due to factors beyond its reasonable control, will not be able to meet
such a deadline.
The OSHA Commission has the authority to assess all civil
penalties under the Act. The penalties are established by the type of violation
that has occurred. For example, a non-serious violation has a penalty range of
$0 to $7,000; serious: $1,000 to $7,000; repeated: $0-$70,000; willful:
$5,000-$70,000; failure to abate a notice: $0-$7,000 per day of the failure.
Once a notice of contest is filed, the Secretary of Labor
will file a complaint stating the charges. The employer must file an answer
within 20 days after service of the complaint and it must contain a short and
plain statement denying all allegations of the complaint the employer intends
to contest.
Any allegation that is not denied will be deemed admitted.
The employer’s answer must also contain all affirmative defenses such as
infeasibility, unpreventable employee misconduct, or the occurrence was due to
a greater hazard. If the employer fails to plead the appropriate affirmative
defense, it may be prohibited from raising the defense at a later stage in the
commission’s hearings.
Any person adversely affected or aggrieved by the final
order of the administrative law judge may seek a review by filing a petition
for review in the U.S. Circuit Court where the alleged violation occurred, or
where the employer has its principal office, or in the Court of Appeals for the
District of Columbia. A petition for review must be filed by the within 60 days
of commission’s final order.
The recovery of attorneys’ fees against the government by an
employer in an OSHA proceeding is governed by the Equal Access to Justice Act
(5 U.S.C. §504). Under the law, a prevailing party in an adversarial agency
adjudication may be awarded attorney’s fees, expert witness fees, and other
costs against the government unless the adjudicator finds that the agency made
a strong showing that its action was substantially justified.
The test as to whether or not the Secretary of Labor’s
action was “substantially justified” is essentially is one of “reasonableness.”
In other words, if the Secretary can show that the case had a reasonable basis
both in law and fact, then no attorney’s fees will be awarded, notwithstanding
the fact that the private party may have prevailed in the action.
Brian L. Champion is counsel at Portland, Me.-based
Verrill & Dana, LLP, where his practice focuses on labor and employment law
and civil litigation. Mr. Champion has extensive trial experience in the areas
of employment law, commercial litigation, and complex civil litigation. Mr.
Champion can be reached at 207-774-4000, and [email protected].
